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Even the Church’s modern-day efforts to assert itself as the arbiter – beginning with the 1990 apostolic constitution “Ex Corde Ecclesiae” – have proven somewhat controversial, despite the clear reading of canon law: “[N]o university may bear the title or name Catholic university without the consent of the competent ecclesiastical authority.”

But if it is controversial even for the Church to decide this question, how much more controversial is it for the government to interfere? {{more}}

The National Labor Relations Board (NLRB), a federal panel that arbitrates disputes between workers, unions and businesses, has lately put itself in the business of deciding which schools are really Catholic.

Traditionally, Catholic schools have been exempted from the National Labor Relations Act, and therefore from the NLRB’s control. Because mandatory collective bargaining on work rules could compromise an institution’s religious freedom, courts have held that their workforces cannot unionize under the act’s provisions.

In two recent cases, the NLRB’s regional directors have circumvented this obstacle by holding that Catholic schools – namely, Manhattan College in New York and St. Xavier University in Chicago – are not, in fact, Catholic.

The decisions are still subject to appeal, but for now the Church says these schools are Catholic, and the government says they’re not.

The Supreme Court has held that the National Labor Relations Act does not apply to lay teachers in Catholic high schools, but the NLRB believes colleges should live by a different standard.

The basic rationale is that, unlike the primary and secondary school environment in which students are instructed in the faith, college students and teachers live in an environment of academic freedom.

At most Catholic colleges, teachers are not charged with “indoctrinati[ng] and proselytizing,” and neither the Church itself nor any clerical institution has direct control or a major financial stake.

Most Catholic colleges do not require loyalty oaths or compel religious observance among students. They hire non-Catholics and have lay boards of trustees.

On those grounds, and especially if they have ever published materials talking of their “independence” from the institutional Church, most Catholic colleges are now susceptible to having their religious freedom taken away by the NLRB.

In the case of Manhattan College, NLRB’s regional director concluded that “the purpose of the college is secular and not the ‘propagation of a religious faith.'” Similarly situated schools should be on notice.

“Ex Corde Ecclesiae” explicitly said in 1990 that a Catholic university community “includes members of other churches … and also those who profess no religious belief.” The document on “Ex Corde’s” application, released 10 years later, says that “academic freedom is an essential component of a Catholic university.”

In contrast, the NLRB deems “secular” any college that does not adopt a grammar-school model of Catholic education. As Manhattan College argued (unsuccessfully), the NLRB’s criteria assume that “religious belief must be authoritarian and hence inconsistent with academic freedom.”

The NLRB’s recent rulings suggest a cartoonish vision of faith as a strictly compulsory activity for children and the weak-minded. They evince a disappointing ignorance of, or disregard for, the way faith is communicated among intelligent adults.

That is, of course, at the heart of Catholic universities’ role: to bring students and faculty to a better knowledge and love of God through appeals to the intellect and examples of virtue. For an adult mind, these appeals cannot be persuasive unless they occur in an atmosphere of academic freedom.

This is the ideal we strive for. But it is not hard to see the problem when the Church tells Catholic institutions of higher learning to embrace academic freedom and the federal government tells us simultaneously that we don’t qualify as “Catholic” unless we do otherwise.

John Garvey is the president of The Catholic University of America and a nationally renowned expert on constitutional law.